No, they can’t. A will’s executor cannot take everything in a settlement unless they are the sole beneficiary of that will.
An executor is a fiduciary to the estate—a trusted person who acts on behalf of another and their interests—and not necessarily the estate’s beneficiary. When someone serves as executor, that only entitles them to receive what’s called the “executor fee.” The executor fee commonly comes from the estate funds, and is traditionally a legal entitlement that will be paid out for their time and effort.
Table of Contents
- 1 What Is an Executor?
- 2 What Powers Do Executors of Wills Have?
- 3 Can an Executor Decide Who Will Get What?
- 4 Can an Executor Take Money From the Bank?
- 5 Can an Executor Sell Property of the Estate?
- 6 Can an Executor of a Will Take All the Money?
- 7 Can an Executor Get In Trouble?
- 8 What to Ask Yourself When Considering Legal Action Against an Executor of a Will
What Is an Executor?
The executor of an estate is the trusted individual that handles and oversees the probate process for the family. Traditionally, a testator selects the executor themselves and names the person specifically in their will. Being an executor and handling the process of the will is an important and essential duty, one requiring tact, transparency, and thoughtfulness.
What Powers Do Executors of Wills Have?
An estate’s executor has been given full rights to control and manage the estate, as well as use ordinary care and provide due diligence over the proceedings. Think of the executor as an administer of the estate, who stays loyal to the family and deals with the rights of the will with utmost impartiality. Again, their fiduciary duty is to avoid any and all conflicts of interest, to preserve the assets of the estate, to protect those involved, and to keep the proceedings of the will productive. They also need to ensure that any and all debts, taxes, creditors, etc, are paid out before honoring the beneficiaries and heirs of the will.
Can an Executor Decide Who Will Get What?
What an Executor Can Do
If it sounds stressful, it is—the role of the executor is immensely important and should be taken seriously. The executor carries a heavy load; they have to manage the funds of the estate, prepare the funeral, collect legal documents, cancel credit cards, and find attorneys and financial experts to provide assistance in properly administering the assets in a way that honors the best interest of the beneficiaries as well as the desires of the will itself.
What can an executor do?
- Apply for probate to gain access to money, property, and home assets
- Properly manage estate assets and protect them
- Interpret the will and distribute assets
- Mediate all conflicts between potential beneficiaries
- Invest the assets of the estate
What an Executor Can’t Do
While the executor has a number of powers granted as overseer of the will, there are still a number of things they cannot do:
- Sign the will on the testator’s behalf, either before or after death
- Alter the will’s beneficiaries
- Execute portions of the will before the testator passes
- Prevent beneficiaries of the will from contesting its portions
- Take assets or property from the will
In some unique circumstances, the executor of the will might also be its sole beneficiary. Still, the executor must abide by the law and the rules of the will and must wait to receive their inheritance until after the completed probate process. As with any will, all debtors, creditors, and other bills must first be paid, and the court has to approve the will’s petition before granting the beneficiary their assets.
The chance of the executor “taking everything” could happen if nobody is mentioned in the will, but they are still only provided access to the assets that remain after debts and taxes. The executor does have some discretion to liquidate or redistribute the assets of the estate, but they still have a full fiduciary duty to the legal testator—they must hold the deceased best interests in mind.
Can an Executor Take Money From the Bank?
The executor of the will can transfer money out of a decedent’s bank account and into an estate account, though they can’t withdraw cash from the account personally or transfer it directly into their own bank account. Again, the assets of the estate don’t belong to the executor, but to the estate.
The executor must follow protocol as a fiduciary and properly manage the money within the estate account—they can’t take it for themselves. Even in the case where the executor is the beneficiary, they can’t directly take funds as their inheritance from the decedent’s account. As with the rest of the process they must wait until the estate is finalized and the funds are properly distributed to all beneficiaries with final court approval.
An estate account lists the executor as the new account owner, but only within their capacity as fiduciary. While the executor can access the funds in the account to pay off taxes, debts, and expenses, they cannot use it for personal needs. After the estate is closed, the executor can then close the account and distribute the remaining money as per the instructions of the will.
Can an Executor Sell Property of the Estate?
Yes—with some caveats, the executor can sell property owned by the estate.
In some states, a probate referee might be appointed to appraise all of the estate’s assets, which include real estate, personal property, and securities. The executor might then be able to sell the estate’s property for a percentage of the appraised value, without waiting on approval of the beneficiaries or the court. Even though the executor doesn’t need to get approval, they should still provide their beneficiaries with notice of the sale of property.
The major exception is that when the executor sells real estate they typically need to receive approval from the beneficiaries and the court. You should contact a professional attorney if you do not understand how probate works.
Can an Executor of a Will Take All the Money?
No, they cannot. An executor can’t sporadically take money from the testator’s estate, because they ultimately have a fiduciary duty to properly distribute the money according to the will and testament of the testator. The property of the estate belongs to the estate itself as well as creditors, debtors, and beneficiaries.
They must settle any outstanding debts and expenses before the executor can distribute the assets of the will, including property and cash.
Can an Executor Get In Trouble?
Yes, the executor can get in trouble if they refuse to properly distribute the will or if they improperly remove money from the estate. This can be considered a breach of their fiduciary duty, meaning they failed to follow the contents of the will, which includes the proper distribution of money and property.
When an executor improperly carries out the duty of the will or ignores its contents they can be legally suspended or removed—or in some cases surcharged, which is a court order to pay damages for improperly handling the estate. The executor can be directly ordered by the courts to repay stolen assets and stolen property. When the executor’s actions are in the extreme, such as directly stealing assets, they can be brought up on criminal charges. The executor must abide by the contents of the will at all times.
What to Ask Yourself When Considering Legal Action Against an Executor of a Will
After seeking legal advice and reviewing all estate documents, if you have determined that you cannot resolve your issues with the executor then there are a few legal options you can pursue.
Before taking direct legal action, ask yourself some of these questions:
- Do I have proper written or audio records of all my communications with the executor?
- Have I tried everything within my means to recover what’s mine outside of the law?
- Can I prove without a shadow of a doubt that the executor is not fulfilling their estate responsibilities?
- Can my inheritance offset the costs of hiring a lawyer?
- Do all the other beneficiaries share my feelings, or will they join in the lawsuit?
When calling an executor’s abilities and competency into question, the court will dutifully examine the matter to see if they should be replaced and who would perform better as executor. Any affected parties can take part in the hearing, including any potential executors, beneficiaries, heirs, creditors, or spouses. The executor will be removed only if the judge acknowledges there are grounds for removal.
In conclusion, we hope that this information is useful in helping you know what to do if an executor is not doing their part to honor the details of the will. If you need a probate lawyer with years of experience or want help holding your executor responsible, contact us at Skyview Law. Our expert probate litigation attorneys can help you through every step of this complicated process, and we are also deeply knowledgeable in estate planning, wills, and power of attorney. Call us today for a consultation or visit our new office in Kennewick, WA!